14 February 2011
Partners at Gamble and Ghevaert LLP www.gambleandghevaert.comAppeared in BioNews 595
The case of TT (a minor) involved a woman who met a married couple over the Internet and agreed informally to become a surrogate mother for them, conceiving by private arrangement using her own egg and the intended father's sperm. The agreement was not set up by one of the UK's not for profit surrogacy agencies and so the parties did not have the benefit of advice, counselling and support that such agencies routinely provide. The arrangement also followed a history of dealings with several Internet surrogacy sites, the facts of which were disputed by the parties. The parties' relationship broke down during the pregnancy and the surrogate mother had a change of heart and decided to keep the baby. The intended parents then applied to court for a residence order. The baby girl was five months old when the court gave judgment and the intended parents had had only limited contact with her since birth.
The court's decision to award care to the surrogate mother was guided by the paramount consideration of the baby's welfare. This decision was based on the close attachment formed between the surrogate (and biological) mother and the baby, the ongoing breastfeeding and the risk of emotional harm if the baby was moved into the care of the intended parents in the stark manner the intended parents proposed. In particular, the court expressed concern about the intended parents' ability to meet the baby's emotional needs longer term and their lack of insight as to the importance of the baby girl's relationship and close attachment with the surrogate mother. Mr Justice Baker went on to highlight the risk that the '...natural process of carrying and giving birth to a baby creates an attachment which may be so strong that the surrogate mother finds herself unable to give up the child'. It was therefore a fact based decision and does not set a binding precedent, although it will inevitably strike an uncomfortable note amongst prospective intended parents.
The case of TT (a minor) highlights the advent of Internet surrogacy sites that make informal surrogacy agreements possible, which leads to the question whether there would have been a different outcome if the parties had received support and advice from a surrogacy agency, together with counselling or some form of regulation earlier in the process. However, the fact that there have been so few published cases of surrogacy arrangements which have gone wrong in the UK is testament to the care and attention with which these arrangements are usually set up and approached by intended parents, surrogates, surrogacy agencies and, where conception takes place at a licensed clinic, by counsellors and medical professionals who have a duty to consider the best interests of any future born child.
Over the last ten years, there have been only two published judgments where the English courts have had to untangle disputed surrogacy arrangements. The case of Re W and B and H (Child Abduction: Surrogacy) (2) involved a surrogacy arrangement between an English surrogate and US intended parents who entered into a binding surrogacy agreement in California. During the pregnancy the surrogate mother had a change of heart and returned to the UK where she gave birth to twins. The court eventually determined that the babies should be returned to California, following international abduction proceedings brought by the US intended parents. The case of Re N (a Child) (3) involved a dispute over a surrogate born child between the surrogate parents and intended parents, where the court eventually awarded care of the then 18 month old child to the intended parents. The outcomes of these cases indicate the wide-ranging and fact based approach taken by the court.
The question of how to treat and regulate surrogacy arrangements raises many issues, and the UK has so far adopted a cautious middle ground approach allowing surrogacy on a restricted basis, banning commercially arranged surrogacy and making it a criminal offence for prospective surrogates or intended parents to advertise. Public policy in the UK also prevents the use of binding surrogacy contracts. Surrogacy arrangements are therefore based on trust and goodwill in the UK and the intended parents must apply to court for a parental order post birth in order to obtain full parental rights for the child. This can only be granted with the full consent of the surrogate mother and, if married, her husband. Other countries take a different approach, with many European countries banning surrogacy altogether, for example France and Italy. However, some US states, India and Ukraine permit surrogacy on a commercial basis where surrogacy contracts are legally enforceable and require the surrogate mother to hand over the baby to the intended parents at birth.
The media coverage of the case of TT (a minor) (1) and growing interest and globalisation of surrogacy brings new challenges for us all to grapple with. There is nothing new about surrogacy, but the increasing numbers of people seeking to create families through surrogacy in the UK and abroad, as well as the power of the Internet and celebrity endorsement by the likes of Elton John and Nicole Kidman has inevitably captured public imagination and therefore puts an increasing strain on the current legal system. However, while it remains rare for surrogacy arrangements to end in dispute, there will continue to be occasions where the surrogate mother changes her mind and seeks to keep the baby, which will continue to bring into focus the inherent risks of a UK surrogacy process based on trust and goodwill that was designed over twenty years ago to cater for a small number of altruistic cases involving friends and family.